15 Ga. App. 555 | Ga. Ct. App. | 1914
W. E. McAndrew sued Mallory H. Taylor in the city court of Macon upon the following contract: “Georgia, Bibb county. This agreement made and entered into this 18th day of May, 1905, between Mallory H. Taylor and W. E. McAndrew, witnesseth: That whereas Mallory H. Taylor has this day purchased from W. E. McAndrew the sixty certain shares of the capital stock of ‘McAndrew & Taylor/ a corporation, the said McAndrew agrees, in consideration to such purchase, that he will, out of the moneys paid to him this day for said stock by Mallory H. Taylor, pay off, satisfy, and discharge all his personal debts he may be due to the debtors of said corporation or make arrangements thereof so that the corporation will not be delayed in the collection of debts due to it. The said Mallory H. Taylor, on his part, that as a part of the consideration of the purchase price of said shares of stock this clay received from said W. E. McAndrew, that he, Mallory H. Taylor, does hereby agree to assume the payments of certain notes held by the Commercial and Savings Bank on which said McAndrew is endorser, the said notes being made by said corporation. The said Taylor agrees to take up said notes with said bank and the said McAndrew shall not be liable in any way upon the same. The said Taylor further agrees that as there is now in the American National Bank of this city a balance of $342.01 in the name of Phillips & Jones, which sum McAndrew & Taylor claim to own, that said Taylor, as soon as the same is collected by him or by the corporation, will pay over one half of the sum received from said bank to the said W. E. McAndrew. The said McAndrew’s title and interest, one half of the said sum, being recognized by the said Taylor, and the said McAndrew recognizing the said Taylor and his son Ray’s interest in the other half. Signed, sealed and delivered in duplicate this 18th day of May, 1905. W. E. McAndrew (L. S.) Mallory PI. Taylor (L. S.).” At the trial the defendant offered an amendment to his answer, as follows: “At the time of making contract sued on, defendant was an officer and director of the corporation of McAndrew & Taylor, and a large stockholder therein; that plaintiff, as an officer and man
There was no error in overruling the demurrer to the defendant’s plea; and the action of the court in directing the verdict was harmless to the plaintiff, because, under no view of the evidence was he entitled to recover. “A court of justice will not lend its aid to the enforcement of any contract the making of which is prohibited, nor to the enforcement of anything which is necessary to complete the accomplishment of an unlawful purpose.” Glass v. Childs, 9 Ga. App. 520, 522 (71 S. E. 920). “It is as well settled as any proposition can be, that neither a court of law nor a court of equity will lend its aid to either party to a contract founded upon an illegal or immoral consideration. If the contract is executed it will be left to stand; if it be executory neither party can enforce it. Howell v. Fountain, 3 Ga. 176 [46 Am. D. 415]; Adams v. Barrett, 5 Ga. 404; Peacock v. Terry, 9 Ga. 137, 147; White v. Crew, 16 Ga. 416; Ralston v. Boady, 20 Ga. 449; Bailey v. Milner, 35 Ga. 330 [Fed. Cas. 740]; Bugg v. Towner, 41 Ga. 315; Thompson v. Cummings, 68 Ga. 125.” Watkins v. Nugen, 118 Ga. 373 (45 S. E. 263). '
As was said by Judge Nisbet in the early ease of Adams v. Barrett, 5 Ga. 404, 424, it is a general rule that “where parties to a contract illegal or immoral are in pari delicto, courts will not interpose, but leave the parties where they find them, according to the maxim in pari delicto potior est conditio defendentis et possidentis.” Judge Nisbet in the same ease quotes from the opinion delivered by Mr. Justice Johnson, in the early South Carolina case of Denton v. English, 2 Nott & McC. 581 (10 Am. D. 638), as follows: “After a careful research I have not been able to find a single exception, in cases arising on common-law principles, to the general rule that when parties are in pari delicto, melior est conditio possidentis. And no possible case occurs to my mind which would constitute an exception.” Many early English cases are cited by Judge Nisbet, supra, in support of this rule. In Clark on Contracts, 491, the general rule deducible from the authorities is stated to be that “A court will not lend its aid to a party who, as the ground of his claim, must disclose an illegal transaction.” And this means that whenever either party has to rely upon a contract lyhicli is in fact illegal, the other party may, in avoidance of it,
Judgment affirmed.